1. This appeal arises out of a suit for damages, for breach of a contract of charter-party. The plaintiff is a merchant of a place called Sharmacala, a port in the South of Arabia, on the Gulf of Aden. The 1st defendant is the owner of a vessel called Patharath. The 2nd defendant is the 1st defendant's agent and master of the vessel. The appeal was withdrawn, so far as the 2nd defendant is concerned and is pressed only against the 1st defendant, or 1st respondent. The contract of charter-party is embodied in Ex. I, dated the 23rd March 1917. According to this contract, the ship was to be loaded with cargo such as keta, planks, katia jaggery, dry ginger, coffee etc., and was to proceed to Sharmacala. The amount of freight was Rs. 2,301. Rs. 1,000 was to be paid in advance and was so paid by the plaintiff. The remaining Rs. 1,301 was to be paid, on the ship reaching the port of destination. The ship was to be loaded at Calicut, within 3 to 4 days and she was to be unloaded and the goods taken within 5 to 8 days at Sharmacala. There were the usual fl clauses of exemption from liability on account of act of God, and King's enemies. The ship sailed on the 2nd April, 1917. She went first to Marmagoa which she left on the 24th of April. In the course of the voyage, the ship met a storm and her gale pole was damaged. It is said that a part of the cargo was jettisoned on the 27th of April, and the ship had to go to the port of Karwar on the 1st May, 1917. At Karwar, the master of the ship made an application to the port authorities for help to I land the goods. This is Ex. K. At the same I time, he made a statement, Ex. E. In this statement, we have got in one of the answers the following passage:
I had gone near Marmagoa; there, I took malim in the vessel and without entering the port, I anchored, at a distance, and from there I proceeded on date 24th.
2. The rest of the cargo was landed at Karwar and information was given to the plaintiff, who was then at Bombay. This was on the 28th of August, 1917. The plaintiff gave a notice by the 6th September, 1917, insisting that the goods should be taken back from Karwar to Sharmacala; but the master did not take plaintiff's goods. He took other cargo and left Karwar for Calicut on the 8th September, 1917. The usual notices passed between the legal advisors of the plaintiff and defendants. The suit was filed on the 15th of April, 1918.
3. The only evidence we have got in the case is that of the plaintiff and his witnesses. The plaintiff is P.W. 3 and examined three witnesses, P.Ws. 1, 2 and 4. The defendant adduced no evidence. Neither the master of the ship nor anybody else on his side has gone into the box. Beyond the solitary statement t abovementioned by me in Ex. E. we have no information exactly, as to the purpose why the ship went to Marmagoa. The plaintiff in his evidence says that there is no necessity to go to Goa to take up a malim. This evidence is uncontradicted. It is settled law that if the charter-party says nothing more than that the cargo should be carried from one port to another, it is an implied condition that the ship must go according to the nearest route between the ports. Any usage permitting deviation may be proved. Vide Maclachan's 'Law of Merchant Shipping' p. 473. The distance between Calicut and Marmagoa is 200 miles along the coast. We find on the map that Sharmacala is practically due West of Calicut. The plaintiff in his evidence says : 'The usual route to go to Sharmacala is due West from Calicut, along the islands. The voyage would take 18 or 20 days, The usual route is not through Goa to Karwar. At that season, it was unsafe to go that way. The right route would have been along the West of Calicut.' There is no cross-examination on this portion of the plaintiff's deposition. He repeats the same thing in re-examination, We must hold that the master of the ship is guilty of deviation, which has not been justified in the case. It is unnecessary to consider any other point.
4. There being an unjustified deviation, it follows that the plaintiff is entitled to recover all damages caused by the deviation. He is entitled to recover the jettisoned cargo; he is entitled to recover damages and the cost of the cargo; he is entitled to all the incidental expenses including the advanced freight (Scrutton Sect, 137). The result is that the appeal must be allowed and decree must be given to the plaintiff for the sum of Rs. 6,700 with subsequent interest at 6 per cent from the date of the plaint, upto this date and interest at 6 per cent on the aggregate amount till payment, The plaintiff will be entitled to his costs throughout, on the sum of Rs. 6,700. The decree will be against the 1st defendant only, The decree for Rs. 2,500 against the 2nd defendant will remain unaffected.
5. The memorandum of Objections will be dismissed with costs.
6. I agree.